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to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 10-CV-78

BANK OF AMERICA, N.A., et al., APPELLANTS,

v.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(CAB-7763-08)

(Hon. Joan Zeldon, Motions Judge)*

(Hon. Frank Burgess, Motions Judge)

**

(Argued October 19, 2011 Decided November 27, 2013)

Ava E. Lias-Booker, with whom Samantha Thompson, Brian A. Kahn,

Adrienne J. Lawrence, and Michelle N. Lipkowitz, were on the brief, for appellants. 

 

Stacy L. Anderson, Assistant Attorney General, with whom Irvin B. Nathan,

Acting Attorney General for the District of Columbia at the time the brief was filed,

Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General,

were on the brief, for appellee.

BeforeBLACKBURNE-RIGSBY andTHOMPSON,Associate Judges, and WAGNER,

Senior Judge.

 Judge Zeldon decided the Motion to Compel Arbitration. *

 Judge Burgess decided the Motion to Stay.

**
2

WAGNER, Senior Judge: Appellants, Bank of America, N.A. and Bank of

America Corporation (hereinafter collectively referred to as Bank of America or the

Bank), appeal from an order of the trial court denying the Bank’s motion to compel

arbitration under the Federal Arbitration Act (FAA) of the District of Columbia’s

claims for damagesfor lossesincurred asthe result of a protracted fraudulentscheme

perpetrated by the District’s employees and allegedly facilitated by Bank of America. 

Bank of America argues that the trial court erred in its ruling because all of the

District’s claims are within the scope of a contractual agreement that requires

arbitration in the state of North Carolina. The District’s position is that there was no

valid arbitration agreement, or alternatively, its claims do not fall within the scope of

any agreement between the parties. We affirm the decision of the trial court holding

that the parties had no valid agreement to arbitrate their dispute in North Carolina or

elsewhere and retaining jurisdiction of the District’s claim under the Fraud Claims

Act. We remand the case to the trial court for further proceedings consistent with this

opinion as it relates to the remaining counts of the District’s amended complaint. 

I. Procedural Background

This action arises out of a fraudulent scheme by a former manager in the
3

District’s Real Property Tax Administration Adjustment Unit in its Office of Tax and

Revenue. The District filed a complaint against Bank of America, Walter R. Jones,

Jr., Harriette Walters, Jayrece Elaine Turnbull, and unknown Jane and John Does

alleging that they participated in a conspiracy that utilized a Controlled Disbursement

Account (CDA or CD Account) that the District maintained with Bank of America

to process fraudulent tax refund checks. Specifically, the District alleged that

Walters, a former District employee, used her knowledge of the District’s property

tax refund process to prepare and ensure approval of the fraudulent checks which

were given to co-conspirators to deposit or cash through the Bank. According to the

complaint, Jones, an assistant branch manager for the Bank, and other unknown bank

personnel facilitated the negotiation of the fraudulent checks. As theories of liability,

the District asserted: (1) violation of the Uniform Commercial Code (UCC) (D.C.

Code § 28:3-404 (2001)); (2) violation of UCC § 28:3-405; (3) negligence; (4) fraud;

(5) breach of fiduciary duty; (6) conversion; (7) violation of the D.C. False Claims

Act (FCA) (D.C. Code § 2-308.14 (2006 Repl.)); and (8) negligence in training, 1

hiring and supervising bank personnel. As relief, the Districtsought repayment of all

funds lost totaling $39,212,815.24. Under the False Claims Act, it sought treble

damages of $117,212,815.24, penalties of $10,000 plus costs and attorney’s fees.

 This provision has been recodified at D.C. Code § 2-381.02.

1
4

The Bank filed a “Motion to Dismiss, or in the Alternative, Stay Based on

Forum Selection and Arbitration Clauses,” which the trial court treated as a Motion

to Compel Arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. In its

motion, the Bank asserted that the District’s claims are subject to arbitration pursuant

to a clause in its Treasury Service Booklet (TSB) requiring arbitration of disputes

related to the account or bank services and a forum selection clause in its Deposit

Agreement (DA) requiring any proceeding regarding the CD Account to be brought

in NorthCarolina. Concluding that the parties’ voluminous filings did not make clear

what documents controlled the dispute, the trial court held an evidentiary hearing in

order to ascertain whether they had an agreement to arbitrate in North Carolina. 

Following completion of the hearing proceedings, the trial court denied the Bank’s

motion by written order in which it found that the parties’ 2005 contract provisions

superseded any dispute resolution or forum selection clauses previously agreed upon

and that the signatories to any documents executed subsequently lacked authority to

bind the District to arbitration in North Carolina. The court retained jurisdiction of

the False Claims Act count explaining that the FCA is a part of the Procurement

Practices Act of 1985 (PPA), which the parties incorporated into their 2005

agreement, and that actions thereunder are within the Superior Court’s exclusive
5

jurisdiction under D.C. Code § 2-301 et seq. The court dismissed the District’s 2

remaining claims, holding that they are within the exclusive jurisdiction of the

District’s own contracting officer and the Contract Appeals Board (CAB).

The Bank filed a motion to alter or amend the trial court’s order and to certify

certain rulings to this court for review. The Bank noted this appeal before the trial

court (J. Zeldon) denied the motion to alter or amend. The trial court (J. Burgess)

granted the Bank’s motion to stay the proceedings on the FCA claim and stayed the

dismissal of the District’s remaining counts. However, the order permitted the

District to pursue its contract claims before the District’s Contracting Officer. 

The Bank filed in this court a Motion to Stay Proceedings, or in the Alternative

Enjoin the District Pending Appeal, in which it requested a stay or injunction to

prevent the Districtfrominitiating proceedings before a contracting officer during the

pendency of this appeal. This court denied that motion and ordered the Bank to show

cause why the appeal should not be dismissed for lack of jurisdiction as having been

taken from a non-final order, citing In re Calomiris, 894 A.2d 408, 408 (D.C. 2006),

The Procurement Practices Reform Act of 2010 which came into effect April 2

8, 2011, repealed these provisions. See D.C. Law 18-371, § 1201 (a), 58 D.C. Reg.

1185 (Apr. 8, 2011).
6

Hercules & Co. v. Beltway Carpet Serv., Inc., 592 A.2d 1069, 1071 n.6 (D.C. 1991),

and D.C. Code § 11-721 (d) (2001). Without resolving the jurisdictional question,

this court issued an order vacating the Show Cause order, stating that “[t]he Supreme

Court’s decision in Andersen LLP v. Carlisle, 129 S. Ct. 1896 (2009) may [a]ffect the

applicability of Calomiris, 894 A.2d at 410.” In that order, this court set a briefing

schedule and requested the parties to discuss the opinion in Carlisle in their briefs. 

For the reasons set forth in part III A., infra, we conclude that this court has

jurisdiction of the appeal. 

II. Factual Background and Trial Court’s Decision

A. Factual Summary 

Before addressing the issues, we outline in some detail the factual background

essential to an understanding of the parties’ arguments and our disposition. At least

since the 1990s, the District has maintained a Controlled Disbursement Account with

Bank of America or its predecessors. In July 1999, after Bank of America merged 3

“A CDA is a specialized businessservice for deposit accountsthrough which 3

the District of Columbia is notified, at a specific time each business day, of the

(continued...)
7

with its most recent predecessor, Nations Bank, the account was maintained in North

Carolina. On January 6, 2000, Valerie Holt, then Chief Financial Officer (CFO) for

the District, executed a “Certified Copy of Corporate Resolutions — Opening and

Maintaining Deposit Accounts and Services,” which designated the CFO, the Deputy

CFO/Treasurer, and the Associate Treasurer as persons authorized “to execute and

sign any application, deposit agreement, signature card and any other documentation

required by the Bank to open said accounts.” That same day, CFO Holt signed a

4

signature card for the CDA and verified the signatures of three othersto act under the

(...continued) 3

number and amount of all District-issued checks that will be presented for payment

that day. . . . The service allows the District to transfer to its CDA the exact amount

of money necessary to cover the checks presented and to allow idle funds to be

invested elsewhere.”

The Corporate Resolution also authorized the named individuals to do the

4

following:

to enter any agreements with the Bank for the provision by

the Bank of various Treasury Management services to [the

District of Columbia] as such officer or employee may

determine, in his or her sole discretion, and to sign any and

all documents and take all actions required by the Bank

relative to such Treasury Management services. . . and that

any such Treasury Management agreement(s) shall remain

in full force and effect until written notice to terminate

given in accordance with the terms of any such agreement

shall have been received by the bank. . . .
8

Corporate Resolution. The signature card statesthat by signing, the signatory agrees 5

that the account is to be governed by the terms and conditions set forth in the Bank’s

Deposit and Disclosures Agreement (Deposit Agreement), including any

amendments. The trial court found that all relevant Deposit Agreements specify

North Carolina as the location for resolution of disputes and give the Bank the right

unilaterally to amend its own Deposit Agreement. According to evidence at the

hearing, completion of a signature card wasrequired to add signatories to the account.

Between 2000 and November 13, 2005, a number of District officials signed

signature cards to add or remove names from the account. These included CFO Dr.

Natwar Gandhi, successor to CFO Holt, Associate Treasurer Lasana Mack, and

Interim Associate Treasurer Alcindor Rosier. One of the signature cards signed by

Dr. Gandhi stated that by signing, he “agree[d] . . . [t]o be governed by the terms and

conditions” set forth in the Deposit Agreement. Dr. Gandhi, Mr. Mack, and Mr.

Rosier testified that they signed signature cards only to open an account or to add or

remove signatories.

On September 25, 2000, Acting Deputy CFO/Treasurer, John Robinson, and

In addition the CFO Holt, Dr. William Hall, Deputy CFO and Treasurer, and

5

two Associate Treasurers were identified as persons authorized to act under the

Corporate Resolution.
9

Interim Associate Treasurer and Bank Manager, Alcindor Rosier, executed an

“Authorization and Agreement for Treasury Services” (Authorization) agreeing to be

bound by the Treasury Booklet. The trial court found that the 2000 Corporate

Resolution authorized Rosier and Robinson to enter an agreement for treasury

services. On September 25, 2000, Associate Treasurer Lasana Mack signed a

certification attesting to the authenticity ofthe signatures ofRosier and Robinson and

to his own authority to execute the certification. The certification form states that

“[i]f the client is a governmental entity, the entity’s counsel must sign this

Certification.” Mr. Mack was not the District’s counsel or a lawyer. A clause in the

referenced Treasury Booklet provides for services described therein to be arbitrated

“in accordance with the United States Arbitration Act . . . under the Commercial

Arbitration Rules of the American Arbitration Association” (AAA Rules). The trial

court found that although the Authorization states “in small print” that the Client

received a copy of the Authorization and Agreement for Treasury Services, there was

no evidence that the Booklet was provided to Robinson and Rosier when they signed

signature cards.

In 2002, the Office of Contracting and Procurement for the Office of the Chief

Financial Officer issued a request for proposals (RFP) for Controlled Disbursement
10

Account Services. The RFP required bidders to include in their proposals Paragraph

8, “Dispute Resolution,” which provides:

[i]f a dispute arises under or relates to the contract, a claim

by the Contractor shall be made in writing and submitted

to the Contracting Officer for a written decision. A claim

by the District against the Contractor shall be subject to

written decision by the Contracting Officer.[6]

The RFP stated that the Contracting Officer was “the only official authorized to

contractually bind the District” and that the Contract Administrator had “the

responsibility of ensuring that the work conforms to the requirements ofthe contract.” 

The RFP also required that the Procurement Practices Act of 1985 (PPA) (D.C. Code

§ 2-301.01 et seq. (2001)) (PPA) be incorporated by reference into the contract.

 The RFP defines “claim” as 6

a written demand or written assertion by one of the

contracting parties seeking, as a matter of right, the

payment of money in a sum certain, the adjustment or

interpretation of contract terms, or other relief arising

under or related to the contract. A claim arising under a

contract, unlike a claim relating to that contract, is a claim

that can be resolved under a contract clause that provides

for the relief sought by the Claimant.
11

After a pre-bid conference attended by representatives from several banks,

Bank of America submitted a Technical Proposal and Cost Proposal for the CDA

contract. The Bank’s Cost Proposal included the required clauses described in the

RFP. The Bank’s Technical Proposal included a Table of Contents that referenced

an Agreements/Documentation section listing the following documents: (1) Terms

and Conditions for Treasury Services; (2) Signature Card & Resolution; (3) Wire

Transfer Form; (4) Automated Investment Service Agreement; (5) Bank of America

Direct Profile; and (6) Electronic Pay Profile. It did not include a copy of the

Treasury Services Terms and Conditions booklet. Following a page entitled

“Agreements/Documentation,” there were several blank forms, including

Authorization and Agreement for Treasury Services, Authorization and Agreement

Certification, Treasury Services Delegation of Authority, Business Signature Card,

and a resolution for unincorporated associations, which, the Bank acknowledges, was

included in error. A representative for the Bank testified that he intended that these

documents become a part of the contract. The parties did not sign a contract at that

time.

On March 31, 2005, the Office of Contract Procurement issued an amendment

to the original 2002 RFP and requested that the banks that had responded previously
12

provide their Best and Final Offers for the CDA. A Bank of America representative,

Mr. Bianchi, testified that he was told to update only the Bank’s portion of the

response; therefore, he updated the price proposal and included the same

Agreements/Documentation section the Bank submitted previously. He also testified

that he provided a copy of the Treasury Service Booklet in a separate packet with the

intention that it would constitute additional terms of the contract. Mr. Bianchi signed

the contract on behalf of the Bank, and on November 13, 2005, Ms. Angela Long

Jiggets-Bazzi, a Contract Specialist, who worked in the Office of the Chief Financial

Office, signed the contract. The 2005 contract includes the following language:

“[t]he intent of this contract is for a contractor to manage the disbursement account

in accordance with the published Request for Proposal.” This contract also contains

a merger clause which reads: “[t]his contract, including specifically incorporated

documents, constitutes the total and entire agreement of the parties. All previous

discussions, writings and agreements are merged herein.”

After execution of the 2005 contract, District employees signed a number of

signature cards and authorizations to remove and add new signatories to the CDA. 

On March 6, 2006, after becoming the District’s OFT Treasurer, Mr. Mack signed an

Authorization and Agreement for Treasury Servicesthatstates, in part, that the signer
13

has received the Treasury Services Booklet and agrees to adhere to its terms. Mr.

Mack testified, however, that he thought he was simply opening two bank accounts

and that he did not intend to modify the 2005 contract between the Bank and the

District. That same day, the Chief of Staff for the Office of Finance and Treasury,

Ulysses Glen, Jr., signed a form certifying that Mr. Mack’s signature was the “true

signature of a person authorized to execute the form on behalf of the Client.” This

certification form also statesthat for a governmental entity, its “counsel, or any other

individual as permitted by the entity’s organizational documents” should sign. The

trial court found that Mr. Glen was not a lawyer and that no evidence was introduced

to demonstrate his authority to sign the document on behalf of the District.

On April 17, 2006, Mr. Mack signed a signature card naming himself and two

others as authorized signatories for various accounts with the Bank, including the

CDA. This signature card stated that the signer was accepting the “Authorization”

in the first part of the document that stated “[t]he deposit agreement we give you is

part of your agreement with usregarding use of your account and tells you the current

terms of our deposit accounts.” Mr. Mack also testified that he did not intend to

modify the parties’ contract by signing the signature cards. The District exercised its

option to extend the 2005 contract for one-year periods in October 2006, November
14

2007, and November 2008.

B. The Trial Court’s Ruling

The trial court found that the parties’ 2005 written contract governing dispute

resolution and authority to modify the contractsuperseded “(1) any dispute resolution

or forum selection clauses the Bank claims was previously agreed upon and (2) and

any provision . . . which would allow other District officials to agree to arbitration in

North Carolina (or elsewhere).” Thus, the court could not find, as the Bank urged,

7

that the 2006 Authorization and Agreement for Treasury Service signed by the

Deputy CFO/Treasurer was validly executed or that any signature cards signed after

the 2005 contract bound the District to the forum selection provision in the 2008

Deposit Agreement. The trial court declined to dismiss the claim asserted under the

False Claims Act, reasoning that the PPA, which is incorporated into the 2005

contract, makes the Superior Court the appropriate forum for claims under that Act. 

As an additional legal basis for concluding that the parties had no agreement to

arbitrate in North Carolina, the trial court held that the PPA withheld from District

The trial court also found that the claims involved in the litigation fall within

7

the scope of the arbitration and forum selection provisions set out in the Treasury

Services Booklet and Deposit Agreement upon which the Bank relied.
15

officials the authority to agree to the arbitration and forum selection clauses in the

documents relied upon by the Bank.

III. Preliminary Issues

A. Jurisdiction

The question of this court’s jurisdiction wasraised initially in an order to show

cause why the appeal should not be dismissed as having been taken from a non-final

order, which cited Calomiris, supra, 894 A.2d at 408, and Hercules &Co., supra, 592

A.2d at 1069. Subsequently, the court vacated the order to show cause, stating that

“the Supreme court’s decision in Andersen LLP, supra, 129 S. Ct. at 1896 may

[a]ffect the applicability of Calomiris, 894 A.2d at 410,” setting a briefing schedule,

and directing the parties to discuss Andersen in their briefs. Appellant argues that

Calomiris is not applicable to the present case and that Andersen and our case law

support immediate appellate jurisdiction over appeals from denials of motions to

compel arbitration. The District does not contend otherwise. Nevertheless, this court

must be satisfied that it has jurisdiction. Therefore, we consider the jurisdictional

questions raised by the motions panel. 
16

The Bank argues that this court has jurisdiction because the appeal is from an

order denying its motion to compel arbitration based on a written agreement that it

contends governs the parties’ contractual relationship. Citing Andersen, supra, 129

S. Ct. at 1896, the Bank contends that such orders have been held to be final and

immediately appealable under 9 U.S.C. § 16 (a)(1)(A) of the Federal Arbitration Act

and D.C. Code § 11-721 (a). In Andersen, the Supreme Court considered “whether

appellate courts have jurisdiction under § 16 (a) [of the FAA] to review denials of

stays by litigants who were not parties to the relevant arbitration agreement, and

whether § 3 can ever mandate a stay in such circumstances.” Andersen, 129 S. Ct.

8

at 1899. The District Court had denied petitioners’ demand for arbitration and

request for a stay, and the Sixth Circuit dismissed their interlocutory appeal for lack

Section 16 (a)(1)(A) of the FAA provides that “[a]n appeal may be taken

8

from . . . an order . . . refusing a stay of any action under Section 3 of this title.” 9

U.S.C. § 16 (a)(1)(A) (2006). Section 3 provides, in pertinent part:

If any suit or proceeding be brought in any of the courts of

the United States upon any issue referable to arbitration

under an agreement in writing for such arbitration, the

court in which such suit is pending, upon being satisfied

that the issue involved in such suit or proceeding is

referable to arbitration under such an agreement, shall on

application of one of the parties stay the trial of the action

until such arbitration has been had in accordance with the

terms of the agreement.

9 U.S.C. § 3 (2006).
17

of jurisdiction. Id. at 1900. The Supreme Court reversed, holding that the Sixth

Circuit had jurisdiction to review the denial of the § 3 stay and that a non-party to the

arbitration agreement may invoke § 3 if the relevant state contract law permits him

to enforce it. Id. at 1903. Pertinent to our jurisdictional question, the Supreme Court

stated in Andersen:

Ordinarily, courts of appeals have jurisdiction only over

“final decisions” of district courts. 28 U.S.C. § 1291. The

FAA, however, makes an exception to that finality

requirement, providing that “an appeal may be taken from

. . . an order . . . refusing a stay of any action under section

3 of this title.” 9 U.S.C. § 16 (a)(1)(A). By that

provision’s clear and unambiguous terms, any litigant who

asks for a stay under § 3 is entitled to an immediate appeal

from denial of that motion — regardless of whether the

litigant is in fact eligible for a stay. . . .

. . . Jurisdiction over the appeal, . . . “must be determined

by focusing upon the category of order appealed from,

rather than upon the strength of the grounds for reversing

the order.” Behrens v. Pelletier, 516 U.S. 299, 311, 116 S.

Ct. 834, 133 L.Ed. 2d 773 (1996). The jurisdictional

statute here unambiguously makes the underlying merits

irrelevant for even utter frivolousness of the underlying

request for a § 3 stay cannot turn a denial into something

other than “an order . . . refusing a stay of any action under

section 3. 9 U.S.C. § 16 (a).”

Id. at 1900-01. 
18

In the present case, the Bank demanded arbitration of the District’s claims

under the FAA as provided for in written documents that it contends govern the

parties’ relationship. Treating the Bank’s request as a motion to compel arbitration,

the trial court denied the motion after an evidentiary hearing, concluding that the

controlling contract did not provide for arbitration. The trial court concluded, inter

alia, that a subsequent agreement superseded any prior agreement providing for

arbitration and that later agreements were ineffectual because the signatories to them

lacked authority to bind the District. With one exception, it also denied a stay of all

claims, thereby allowing the unstayed claims to proceed in another forum (i.e., before

the Contracting Officer and the Contract Appeals Board.) 

9

The Bank argues that, under Andersen, it is entitled to appellate review from

the denial of its motion to compel arbitration and for a stay. Andersen supports the

Bank’s argument. Here, the Bank relied upon a written agreement containing a

provision for arbitration under the FAA, albeit one that the trial court found, after an

evidentiary hearing, had been superseded by subsequent agreements. Whether the

Bank can prevail ultimately on its argument that the agreement containing the

The trial court retained jurisdiction of only the fraud claim and stayed the

9

action as to that claim.
19

arbitration provision controls goes to the merits of the controversy rather than the

appellate court’s jurisdiction to adjudicate it. As the Supreme Court stated in

Andersen, jurisdiction over the appeal is determined by the category of the order

appealed from rather than the strength of the grounds for overturning it. Andersen,

supra, 129 U.S. at 1900. Thus, an appeal from the denial of the Bank’s motion to

compel arbitration and stay the court’s denial of the motion would be immediately

appealable under the FAA. See id. at 1900-01. 

Moreover, case precedents from this court also support our jurisdiction to

review the denial of the Bank’s motion to compel arbitration. This court has

exercised jurisdiction of an appeal from an order denying a motion to compel

arbitration, concluding that it is a final order, appealable pursuant to D.C. Code §11-

721 (a)(1). See, e.g., 2200 M Street LLC v. . Mackell, 940 A.2d 143, 147 & 147 n.2 10

(D.C. 2007) (citing D.C. Code § 16-4317 (a)(1) and Umana v. Swindler & Berlin,

11

 D.C. Code § 11-721 (a)(1) (conferring jurisdiction upon the D.C. Court of

10

Appeals from “all final orders and judgments of the Superior Court of the District of

Columbia”).

D.C. Code § 16-4317 (a)(1) then provided that for purposes of appeal, an 11

order denying an application to compel or stay arbitration was a final order. This

section was a part of the Uniform Arbitration Act, D.C. Code §§ 16-4301, -4319

(DCUAA) that was repealed effective July 1, 2009. 55 DCR 1847 (Feb. 27, 2008).

(continued...)
20

669 A.2d 717, 723 (D.C. 2005)) (other citation omitted). This court has also held that

it had jurisdiction over the appeal of an interlocutory order denying a motion to

compel arbitration under D.C. Code § 11-721 (a)(2)(A) because the order

“‘frustrate[d] arbitration.’” Mausurovsky, supra note 11, 687 A.2d at 201 n.1

(quoting Brandon v. Hines, 439 A.2d 496, 506-07 (D.C. 1981) and citing Umana,

supra, 669 A.2d at 721 & n.11)). In Brandon, we concluded that an order denying

a motion to confirm an arbitration award and requiring the parties to go to trial is an

appealable interlocutory order dissolving an injunction under D.C. Code § 11-721

(a)(2)(A) (1973). Brandon, 439 A.2d at 500. In reaching this conclusion, this court

12

found persuasive the Supreme Court’s opinion in Carson v. Am. Brands, Inc., 450

(...continued) 11

The Revised Uniform Act also providesthat an appeal may be taken from “[a]n order

denying or granting a motion to compel arbitration.” D.C. Code § 16-4427 (a)(1)

(2001). This court has not resolved the question of the validity of the apparent

jurisdictional grant by the Council to this court under the DCUAA or the Revised

Uniform Act. See Masurovsky v. Green, 687 A.2d 198, 201, n.1 (D.C. 1996)

(declining to decide the issue because of jurisdiction to review an interlocutory order

under D.C. Code § 11-721 (a)(2)(A)); Umana, supra, 699 A.2d at 722 (holding that

“the DCUAA does not attempt to confer jurisdiction upon this court under the

circumstances of this case,” and therefore, it need not decide whether D.C. Code §

16-4317 is consistent with the Home Rule Act).

D.C. Code § 11-721 (a)(2)(A) confers jurisdiction upon the District of 12

ColumbiaCourt of Appeals frominterlocutory orders ofthe Superior Court “granting,

continuing, modifying, refusing, or dissolving or refusing to dissolve or modify

injunctions.” This section remains unchanged in the 2001 edition of the Code. 
21

U.S. 79, 90 (1981), interpreting the federal interlocutory appeals statute that has

language virtually identical to our local statute. Brandon, 439 A.2d at 509. This

13

court observed in Brandon that the trial court’s order, if entered by a federal court,

would have been “an appealable interlocutory order ‘dissolving’ an ‘injunction’ under

28 U.S.C. § 1292 (a)(1).” Id. Thus, we concluded that “denials — but not grants —

of stays of litigation pending arbitration are appealable interlocutory orders, since

only orders that frustrate (in contrast with facilitate) arbitration impose a sufficiently

serious injury to justify an immediate appeal.” Id. at 506-07.14

It was this court’s decision in Calomiris, supra, that prompted the motions

panel to raise the jurisdictional question. In Calomiris, this court dismissed for lack

of jurisdiction an appeal from an order denying summary judgment to one of four

trustees who argued that the trust instrument required that disputes over

administration of the trust be resolved by arbitration. Calomiris, 894 A.2d at 408,

411. Appellant argued that this court had jurisdiction because the order appealed

The federal appellate jurisdictional statute referenced was 28 U.S.C. § 1292 13

(a)(1) (1976).

Under § 16-4427 of the current Revised Arbitration Act, “[a]n appeal may 14

be taken from . . . An order denying or granting a motion to compel arbitration”

(italics added).
22

from was either (1) a final appealable order under D.C. Code § 16-4317 (i.e., an order

denying a motion to compel arbitration), or (2) an appealable interlocutory order

under Brandon, supra, 439 A.2d at 507 (i.e., one that frustrates the arbitration

process). Calomiris, 894 A.2d at 408-09. In Calomiris, we rejected the statutory

argument because the arbitration provision at issue was established by Will, and not

by contract as required for applicability of the statute. Id. at 409-10. Thus, this 15

court held in Calomiris that the will that contained the arbitration provision was not

a contract within the meaning of the District’s Uniform Arbitration Act. Id. at 410. 

Similarly, the court determined that the interlocutory order rule of Brandon v. Hines

presupposed that the parties agreed by contract to arbitration, and therefore the rule

was inapplicable to the facts presented. Calomiris, 894 A.2d at 410. 

The condition precedent found lacking in Calomiris is present in this case. 

Here, the Bank does rely upon a written contract containing an arbitration provision. 

Although the trial court found that this contract wassuperseded by another agreement

D.C. Code § 16-4317 (a)(1) provided that for purposes of appeal, certain

15

orders shall be deemed final, including “[a]n order denying an application to compel

arbitration made under section 16-4302.” Proceedings to compel or stay arbitration

under §16-4302 required a showing of an agreement as described in § 16-4301. (See

note 9, supra). Calomiris, supra, 894 A.2d at 409. The court concluded that a Will

establishing a trust is not a written agreement or contract. Id. 
23

between the parties that does not provide for arbitration, such a merits determination

cannot foreclose appellate review of the trial court’s decision. See Andersen, supra,

129 S. Ct. at 1900. Otherwise, the trial court’s determination that the contract with

the arbitration clause was superseded and does not govern the dispute would

effectively foreclose appellate review. Nothing in Calomiris requires such a result.

For all of these reasons, we are satisfied that this court has jurisdiction of this appeal. 

See Mackell, supra, 940 A.2d at 147 n.2 (holding that denial of a motion to compel

arbitration is a final appealable order allowing this court to exercise jurisdiction

pursuant to D.C. Code § 11-721); see also Andersen, supra, 129 S. Ct. at 1900-01

(holding that the FAA provides for an immediate appeal of an order refusing a stay

under the Act as determined by the category of the order appealed from rather than

the strength of the grounds for reversal).

B. Forum Challenge

The Bank argues that the trial court erred in resolving the District’s objections

to the existence, scope or validity of the parties’ arbitration agreement. It contends

that, under applicable law, these issues are for the arbitrator; therefore, the trial court

erred in denying its motion to compel arbitration. The District responds that its
24

challengesto the arbitration clause itself and to the validity ofthe post-2005 contracts

based on whether the person lacked authority to bind the District are properly

resolved by the court.16

The District also argues that the Bank isjudicially estopped fromcontending 16

in this court that it was for the arbitrator to decide the validity and scope of the

arbitration agreement because it affirmatively asserted a contrary position in the trial

court. The Bank responds that the judicial estoppel rule does not apply because its

position on appeal is not clearly inconsistent with the one it maintained in the trial

court.

“The doctrine of judicial estoppel precludes a party from taking one position

on an issue in the trial court and the opposite position on appeal.” Fairman v. District

of Columbia, 934 A.2d 438, 443 (D.C. 2007) (citations omitted). It is an equitable

doctrine intended to protect the judicial process from improper use. New Hampshire

v. Maine, 532 U.S. 742, 751-52 (2001) (citations omitted). Factors required for

application of the doctrine include: (1) a clear inconsistency between the party’s

earlier position and later one; (2) success in asserting the prior position thereby

creating the perception that one of the courts was misled; and (3) the realization of

an unfair advantage by one party or the imposition of an unfair detriment to the

opposing party. Id. at 752 (citations omitted).

The record supports the Bank’s claim that the position it took in the trial court

is not clearly inconsistent with the position it asserts on appeal. First, the District

concedes that the Bank maintained in the trial court, as it does on appeal, that a

challenge to the validity of the contract as a whole wasfor the arbitrator. Second, the

record shows that the Bank argued that the arbitrator, not the court, had the authority

to determine whether the District’s claims are arbitrable. It contended that all the

District’s claims are subject to arbitration and therefore, the trial court should dismiss

them or stay the action and direct the parties to proceed to arbitration. Finally, as the

Bank points out, it was not successful in advancing these positions in the trial court. 

For these reasons, we agree that the judicial estoppel rule is not applicable here.
25

We start with the basic principle that “arbitration issimply a matter of contract

between the parties; it is a way to resolve those disputes — but only those disputes

— that the parties have agreed to submit to arbitration.” First Options of Chicago,

Inc. v. Kaplan, 514 U.S. 938, 943 (1995); accord, Sandvik AB v. Advent Int’l. Corp.,

220 F.3d 99, 105 (3d Cir. 2000) (citation omitted) (noting that a party cannot be

required to submit to arbitration when he has not agreed to do so because arbitration

is a matter of contract). Generally, in deciding whether the parties agreed to

arbitration, the courts apply ordinary state-law contract principles. First Options, 514

U.S. at 944 (citations omitted). This general rule is subject to qualification when

deciding whether the parties have agreed to have the arbitrator decide the question

of arbitrability. Id. With respect to this issue, the Supreme Court has admonished

that “[c]ourtsshould not assume that the parties agreed to arbitrate arbitrability unless

there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” Id. (quoting AT & T

Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986)). 

Challenges to arbitration agreements may be directed to the validity of the

arbitration clause itself or to the contract as a whole. Buckeye Check Cashing v.

Cardegna, 546 U.S. 440, 444 (2006). Guided by § 4 of the FAA, the Supreme Court

has held that a challenge to the making of the arbitration agreement itself is properly
26

resolved by court, while a challenge to the validity of the contract as a whole is for

the arbitrator. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402

17

(1967) (holding that it is for the federal court to adjudicate a claim of fraud in the

inducement of the arbitration clause itself, but not claims of fraud in the inducement

of the contract as a whole); Keeton v. Wells Fargo Corp., 987 A.2d 1118, 1122 (D.C.

2010) (holding that a claim that the arbitration clause is unconscionable disputes its

validity and isfor the court, not the arbitrator, to decide). More recently, in Buckeye, 

the Supreme Court summarized these principles, as extracted fromits precedents, that

are pertinent to the issue presented here.

First, as a matter of substantive federal arbitration law, an

arbitration provision isseverable from the remainder of the

contract. Second, unlessthe challenge isto the arbitration

clause itself, the issue of the contract’s validity is

 Section 4 of the FAA provides in pertinent part:

17

A party aggrieved by the alleged failure, neglect, or

refusal of another to arbitrate under a written agreement for

arbitration may petition any United States district court

. . . for an order directing that such arbitration proceed in a

manner provided for in such agreement . . . . [U]pon being

satisfied that the making of the agreement for arbitration or

the failure to comply therewith is not in issue, the court

shall make an order directing the parties to proceed to

arbitration in accordance with the terms of the

agreement . . . .
27

considered by the arbitrator in the first instance. Third, this

arbitration law applies in state as well as federal courts.

Buckeye, 546 U.S. at 445-46 (citing Prima Paint, 388 U.S. at 403 and 404 and

Southland Corp. v. Keating, 465 U.S. 1 (1984)) (emphasis added). With these

18

principles in mind, we review the parties’ respective arguments.

The Bank asserts that the arbitration clause in the Treasury Booklet that

incorporates by reference the AAA Commercial Arbitration Rules requiresthe parties

to submit the arbitrability question itself to arbitration. Specifically, the Bank cites 

Rule R-7 that provides:

(a) The arbitrator shall have the power to rule on his or her

own jurisdiction, including any objections with respect to

the existence, scope or validity of the arbitration

agreement.

(b) The arbitrator shall have the power to determine the

In Southland, supra, the Supreme Court held that the FAA created a body 18

of federal substantive law applicable in state and federal courts, and it rejected the

notion that, even for state law claims in state court, state-law could bar enforcement

of § 2 of the FAA. 465 U.S. at 10-14. Section 2 provides that a written provision in

a contract to settle or submit to arbitration a controversy arising out of it “shall be

valid, irrevocable, and enforceable, save upon such grounds as exist at law or in

equity for the revocation of any contract.” 9 U.S.C. § 2.
28

existence or validity of a contract of which an arbitration

clause forms a part. Such arbitration clause shall be treated

as an agreement independent of the other terms of the

contract. A decision by the arbitrator that the contract is

null and void shall not for that reason alone render invalid

the arbitration clause.

Commercial Arbitration Rule R-7. The Bank argues that incorporation of these rules

into the contract show “clearly and unmistakably” that the parties intended for the

arbitrator to decide the issue of arbitrability. See First Options, supra, 514 U.S. at

944 (requiring that the parties’ intention for the arbitrator to decide arbitrability be

shown “clearly and unmistakably”). In support of its position, the Bank relies

primarily upon theSupreme Court’s decision in Rent-A-Center, West, Inc. v. Jackson,

130 S. Ct. 2772 (2010). This case does not support the Bank’s position that the issue

of arbitrability is for the arbitrator.

The issue in Rent-A-Center was whether under the FAA, a district court may

decide a challenge to a contract as unconscionable where the agreement expressly

delegated that authority to the arbitrator. Rent-A-Center, supra, 130 S. Ct. at 2775. 

Respondent Jackson had sued his former employer, Rent-A-Center, for

discrimination, but as a condition of employment, he had signed an agreement that

precluded him from pursuing his claims in court. Id. at 2775. The agreement gave
29

the arbitrator the exclusive authority to resolve any dispute concerning the

enforceability of the agreement. Id. The District Court granted Rent-A Center’s 19

motion to compel arbitration, but a divided panel of the Ninth Circuit reversed in part,

holding that “the threshold question of unconscionability is for the court.” Id.

(quoting Jackson v. Rent-A-Center West, Inc., 581 F.3d 912, 917 (9th Cir. 2009)). 

The Supreme Court reversed, holding that, absent a specific challenge to the

arbitration provision itself, the court must treat this delegation provision as valid

under § 2 of the FAA and leave the challenge to the validity of the agreement as a

whole to the arbitrator. Id. at 2779. Thus, Rent-A-Center suggests a different

20

outcome had petitioner preserved a specific challenge to the provision delegating

arbitrability to the arbitrator. See id. at 2779-80; see also Prima Paint, supra, 388

U.S. at 403-04; Keeton, supra, 987 A.2d at 1122. 

Unlike petitioner in Rent-A-Center, the District directs one of its challenges to

The agreement provided that “[t]he Arbitrator, and not any federal, state, or 19

local court or agency, shall have exclusive authority to resolve any dispute relating

to the interpretation, applicability, enforceability or formation of this Agreement

including, but not limited to any claim that all of any part of the Agreement is void

or voidable” Rent-A-Center, supra, 130 S. Ct. at 2775.

Petitioner challenged specifically the delegation provision for the first time

20

in the Supreme Court, and therefore, the Court would not consider it. Rent-A-Center,

supra, 130 S. Ct. at 2781.
30

the validity of the arbitration clause itself. The District argues that it never entered

an agreement to arbitrate any contract-related dispute because no authorized agent for

the District had authority to sign such an agreement. Therefore, the District’s 

reliance upon Rent-A-Center is well-placed. In Rent-A-Center, supra, the Supreme

Court stated that where a party challenges the agreement to arbitrate at issue under

§ 2 of the FAA, then the court must decide the issue. Id. at 2778. Many appellate

courts, including this court, have held that it isfor the court, rather than an arbitrator,

to decide the validity of the arbitration clause. See Keeton, supra, 987 A.2d at 1122

(citing Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 39 (D.C. 1989);

Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1263-64 (9th Cir. 2006) (en banc); and

Burden v. Check Into Cash of Ky. LLC, 267 F.3d 483, 491 (6th Cir. 2001)) (holding

that it was for the court to decide the validity of an arbitration clause itself in a form

contract.). Likewise, in the present case, it wasfor the court to determine whether the

District, through authorized agents, ever agreed to be bound by the arbitration

provision. Unless the District agreed to arbitration, it cannot be forced to have its

dispute, including questions of arbitrability, heard in a private forum. Therefore, the

trial court properly considered in the first instance the District’s challenge to the

arbitration provision under the circumstances presented here. 
31

The Bank also argues that, insofar as the District’s position is that the

agreement containing the arbitration provision is superseded by subsequent

agreements, its challenge isto the contract as a whole, and therefore, must be resolved

by the arbitrator. It contends that to the extent that the trial court relied upon the

merger clause in the 2005 contract to invalidate the 2000 Corporate Resolution

authorizing various District employees to act on its behalf, “it impermissibly operates

to invalidate the underlying TreasuryBooklet and Deposit Agreement as a whole and,

therefore, the issue of contract validity should have been submitted to arbitration.”

The District responds that because the validity of the post-2005 contracts that the

Bank alleges the District entered turns on whether the person who signed lacked

authority to bind the District, resolution by the court is appropriate. 

For this argument, the Bank relies upon cases holding that challenges to the

validity of the contract as a whole are for the arbitrator to decide. These include:

Buckeye, supra, 546 U.S. at 449 (reaffirming that in both federal and state courts, “a

challenge to the validity of the contract as a whole, and not specifically to the

arbitration clause, must go to the arbitrator.”); Rent-A-Center, supra, 130 S. Ct. at

2779 (requiring for court intervention that the challenge be directed to the agreement

to arbitrate itself and leaving the challenge to the agreement as a whole to the
32

arbitrator); Prima Paint Corp., supra, 388 U.S. at 403-04 (challenges to the

arbitration agreement itself go to the court, while challenges to the entire contract of

which arbitration is a part are for the arbitrator); see also Menna v. Plymouth Rock

Assurance Corp., 987 A.2d 458, 465 n.30 (D.C. 2010) (noting that the validity of the

contract with an arbitration clause isfor the arbitrator unlessthe challenge is directed

specifically to the validity of the arbitration clause itself under the District’s Revised

Uniform Arbitration Act). The Bank contends that resisting arbitration on the

21

ground that the agreement in which the arbitration provision is found is superseded

by later agreements is tantamount to contesting the contract as whole, and thus, the

principle from the cases it cites applies to require consideration by the arbitrator. 

The District acknowledges the general principles extracted from these cases. 

However, it contendsthat where the issue turns on whether the person who signed the

contract lacked authority to commit the principal, judicial review is appropriate, a

point referenced in Buckeye, supra, which the District cites. In Buckeye, the Supreme

Court considered whether a court or an arbitrator should decide the claim that the

contract containing an arbitration provision was void because it violated state lending

and consumer-protection laws. Buckeye, 546 U.S. at 442. Reversing the Florida

 D.C. Code §§ 16-4401 to -4432 (Supp. 2009). 21
33

Supreme Court, the Court held that this challenge to the validity of the contract as a

whole was for the arbitrator. Id. at 446. While reaffirming this general principle and

finding it to be applicable in Buckeye, the Supreme Court also stated that

[o]ur opinion . . . does not speak to the issue decided in the

cases . . . which hold that it is for the courts to decide

whether the alleged obligor ever signed the contract, . . .

[or] whether the signor lacked authority to commit the

alleged principal, Sandvik AB v. Advent Int’l Corp., 220

F.3d 99 (C.A. 3 2000); Sphere Drake Ins. Ltd. v. All Am. [22]

Ins. Co., 256 F.3d 587 (C.A. 7 2001)) . . . .

[23]

Buckeye, 546 U.S. at 444 n.1. This is the essence of the District’s challenge here. It

contends that it never agreed to arbitration because its 2005 contract did not provide

In Sandvik, the Third Circuit affirmed the District Court’s denial of a motion

22

to compel arbitration where the other party claimed that the agent who signed the

agreement lacked authority to sign it and so notified Sandvik. Sandvik, supra, 220

F.3d at 101. The court held that when the very existence of the agreement was

disputed, the district court properly refused to order arbitration until it resolved the

threshold question of whether the arbitration agreement exists. Id. at 111.

In Sphere Drake, the Seventh Circuit held that whether a broker had

23

authority to bind Sphere Drake on reinsurance contracts containing an arbitration

provision was appropriate for resolution by the court. Sphere Drake, supra, 256 F.3d

at 592. The court distinguished the Supreme Court’s decision in Prima Paint in

which the Supreme Court held that it was for the arbitrator to resolve a claim of fraud

in the inducement of the contract. Id. at 590. It noted that in Prima Paint, the parties

actually reached an agreement, while in Sphere Drake, whether there ever was an

agreement was the issue, and arbitration is contractual. Id. at 590-91. 
34

for it and none of its employees were authorized to bind the District to arbitration. 

Thus, we conclude that the trial court was the proper forum in which to determine

whether the District, through its duly authorized agent, ever agreed to arbitration. 

IV. Merits Analysis

A. Standard of Review and Generally Applicable Legal Principles

The court reviews de novo an order denying a motion to compel arbitration. 

Fleetwood Enter. Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (citing Webb

v. Investacorp, Inc., 89 F.3d 252, 257 (5th Cir. 1996)); see also Mausurovsky, supra

note 11, 687 A.2d at 202 (citation omitted) (reviewing denial of a motion to compel

arbitration under the de novo standard). When the trial court sits as the trier of fact,

we review its factual findings under the “clearly erroneous” standard. Psaromatis v.

English Holdings, I, L.L.C., 944 A.2d 472, 481 (D.C. 2008) (citations omitted). We

accord the trial court’s factual findings considerable deference, and we will not

reverse them unless plainly wrong or without evidentiary support. Id. (citing D.C.

Code § 17-305 (a) (2001)) (providing that for non-jury cases, “the judgment may not

be set aside except for errors of law unless it appears that the judgment is plainly
35

wrong or without evidence to support it.”). Thus, when the facts lend themselves to

more than one interpretation, this court defers to the trial court’s judgment. Davis v.

United States, 564 A.2d 31, 35 (D.C. 1989) (en banc) (citations omitted). This court

reviews the trial court’s legal conclusions de novo. Chibs v. Fisher, 960 A.2d 588,

589 (D.C. 2008) (citing D.C. Code § 17-305 (2001)). 

In reviewing a decision to compel arbitration under the Federal Arbitration Act,

we consider first whether the parties had an agreement to arbitrate the dispute. 

Fleetwood Enter., supra, 280 F.3d at 1073 (citing Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 62 (1985)) (citation omitted). We make this

determination based on ordinary state-law contract principles. Id. (citing First

Options of Chicago, supra). The FAA does not require parties to arbitrate a dispute

unlessthey have agreed to do so. Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland

Stanford Junior Univ., 489 U.S. 468, 478 (1989). If it is determined that the parties

had a valid agreement to arbitrate, then we consider next whether the parties’ dispute

falls within the scope of their agreement. Fleetwood Enter., 280 F.3d at 1073 (citing

Webb v. Investacorp, 89 F.3d 252, 258 (5th Cir. 1996)).

The Bank argues that, in performing our de novo review, we must consider the
36

national policy favoring arbitration. However, as the District points out, “th[e]

federal policy favoring arbitration does not apply to the determination of whether

there is a valid agreement to arbitrate between the parties; instead ‘[o]rdinary contract

principles determine who is bound.’” Fleetwood Enter., supra, 280 F.3d at 1073

(quoting Daisy Mfg. Co., Inc. v. NCR Corp., 29 F.3d 389, 392 (8th Cir. 1994)) (other

citation omitted); see also Granite Rock Co. v. Int’l Bd. of Teamsters, 130 S. Ct.

2847, 2859-60 (2010)(holding the presumption in favor of arbitration applicable only

“where it reflects, and derives its legitimacy from, a judicial conclusion that

arbitration of a particular dispute is what the parties intended because their express

agreement to arbitrate . . . [is] best construed to encompass the dispute.”); accord,

Masurovsky, supra note 11, 687 A.2d at 205. In Masurovsky, this court rejected an

argument similar to the Bank’s argument here, concluding that the “initial

determination whether a ‘valid arbitration agreement’ existsmust be determined apart

from the presumption [in favor of arbitration.]” Id. In reaching this conclusion, we

relied upon the Supreme Court’s reiteration of the principle that in deciding whether

parties have agreed to arbitrate, courts should generally apply state law contract

principles and its omission of any suggestion that these principles should be

superseded by the federal presumption. Id. (citing First Options of Chicago, supra,

514 U.S. at 938). Consistent with these established principles, we conclude here that

the presumption in favor of arbitration attaches only after the court findsinitially that
37

a valid agreement to arbitrate exists. Id. With these principles in mind, we turn to

consideration of whether the parties agreed to arbitrate the dispute.

B. Contract Issues

The Bank argues that it had a contractual agreement with the District to

arbitrate claims in North Carolina. It contendsthat officialsin the Office of the Chief

Financial Officer (OCFO) agreed to the terms set forth in its Treasury Services

Booklet which included a provision for arbitrating disputes related to the Controlled

Disbursement Account. On appeal, the District argues, asit did in the trial court, that

there was no agreement to arbitrate contract or fraud claims because OCFO

employees lacked actual authority to enter such agreements by reason of provisions

in the PPA. The trial court agreed with the District’s position, ruling that at the times

relevant to the controversy, OCFO officials lacked the authority under the PPA to

agree to arbitration in North Carolina. Further, the trial court concluded that the 2005

contract incorporating the PPA evidenced the parties’ intent to adhere to the PPA in

its dealings with the Bank. The court also found that the 2005 contract provisions

governing dispute resolution and authority to modify the contract superseded any

dispute resolution or forum selection clauses previously agreed upon by the parties. 

The Bank challenges each of these rulings.
38

1. Scope of Authority of OCFO Employees

Contrary to the trial court’s ruling and the District’s position, the Bank argues

that the OCFO was authorized to agree to arbitrate the District’s claims. The District

responds that its employees, including those in the OCFO, who were bound by the

PPA, lacked authority to agree to arbitrate contract claims and claims involving

fraud. 

24

The District relies for its argument principally upon the PPA statute and this

court’s decision in District of Columbia v. Greene, 806 A.2d 216 (D.C. 2002), in

which this court addressed a similar issue. In Greene, Verizon South claimed that it

had an agreement with the District to submit contract disputes to arbitration, while

the District claimed that it did not because it could not agree to arbitration under the

PPA. Greene, 806 A.2d at 218. In determining whether to enjoin arbitration until the

matter was resolved by the Contract Appeals Board (CAB), this court construed

applicable provisions ofthe PPA and determined that the District waslikely to prevail

on the merits of its argument that its employees could not agree to arbitration under

that PPA. Id. 220-22. In reaching this conclusion, this court observed that the PPA

For purposes of this appeal, the District does not contend that its contracting

24

officers lack authority to agree to arbitration as a general proposition.
39

plainly established the CAB as the exclusive hearing tribunal for determining the

contract claims at issue in the case. Id. at 220. The court found persuasive the

following provisions of the PPA, which are relevant to the issues we address here:

D.C. Code § 2-308.03 (a)(1) states that . . . “[a]ll claims by

the District government against a contractor arising under

or relating to a contract shall be decided by the contracting

officer . . . .” In like fashion § 2-308.05 (a) provides that 

“[a]ll claims by a contractor against the District

government arising under or relating to a contract shall be

. . . submitted to the contracting officer for a decision.” In

§ 2-309.03(a), the statute goes on to declare that “[t]he

[Contract Appeals] Board shall be the exclusive hearing

tribunal for, and shall have jurisdiction to review and

determine de novo: . . . (2) Any appeal by a contractor from

a final decision by the contracting officer on a claim by a

contractor, when such claim arises under or relates to a

contract; and (3) Any claim by the District against a

contractor, when such claim arises under or relates to a

contract.”

Greene, 806 A.2d at 220 (citing the quoted sections). 

Interpreting these and other provisions of the PPA, this court concluded in

Greene that the PPA, in effect, withheld from the District’s contracting officers the

power to agree to arbitration by specifying the manner in which the District may
40

procure property, supplies and services and designating the CAB asthe sole hearing 25

tribunal for resolution of contract disputes. Greene, 806 A.2d at 222. Also pertinent

to the court’s decision, under local contract law, a contracting officer cannot obligate

the District to terms that exceed his or her actual authority. Id. at 222 (citing Coffin

v. District of Columbia, 320 A.2d 301, 303 (D.C. 1974)). Thus, here, as in Greene,

District employees or entities subject to the PPA would have had no authority to

agree to a dispute resolution procedure different than the one specified by law. The

general rule isthat persons contracting with a municipal corporation must take notice

of the nature and extent of its agent’s authority. Id. at 222 and 222 n.7 (citing

Chamberlain v. Barry, 606 A.2d 156, 159 (D.C. 1992), and Coffin, 320 A.2d at 303

(quoting 10 McQuillan Municipal Corporations § 29.04 at 219-22 (3d ed. 1966)). 

Thus, the Bank was bound to note any statutory limitation on the authority of those

in the District with whom it contracted. 

To counter these authorities, the Bank argues that there is no statutory

provision specifically precluding the OCFO from agreeing to arbitrate. This

argument was made and rejected in Greene. As this court explained in that case, this

“argument is difficult, if not impossible, to square with the language of § 2-309.03

 See D.C. Code § 2-301.01.

25
41

(a) making the CAB ‘the exclusive hearing tribunal’ for claims of the kind

enumerated.” Greene, 806 A.2d at 220 (citation omitted). Thus, contracting officers

who were bound by the PPA did not have authority to agree to resolve contract

disputes in another forum in another state. 

We find unpersuasive the Bank’s assertion that Greene is not supportive of the

District’s position because it involved consideration of injunctive relief rather than

a decision on the merits of the claim. In determining whether to grant this

extraordinary remedy, the court had to decide whether there was a substantial

likelihood that the moving party would prevail on the merits. See Greene,supra, 806

A.2d at 219-20 (citing District of Columbia v. Grp. Ins. Admin., 633 A.2d 2, 21 (D.C.

1983) (quoting Wieck v. Sterenbuch, 350 A.2d 384, 387 (D.C. 1976)). This required

the court to address squarely the same question raised here, i.e., whether the PPA

withheld authority fromits contracting officersto agree to arbitration. In doing so, the

court had to construe the PPA statute before deciding whether the District was likely

to prevail on its claim. Thus, we agree that Greene is good authority for the District’s

position here. Moreover, we are persuaded by its statutory analysis of the issue. 

Next, the Bank argues that the OCFO is exemptfromPPA provisionsregarding

contracting authority. It contends that D.C. Code § 2-301.04 (a) and subsequent
42

Congressional enactments confirm the independent authority oftheOCFOto contract

and therefore to agree to arbitration. The District responds with authorities

26

supporting its claim that the OCFO has always been bound by the PPA. 

The section ofthe Code upon which the Bank relies for its exemption argument 

reads in pertinent part as follows:

. . . [the PPA] shall apply to all departments, agencies,

instrumentalities, and employees of the District

government . excluding . . ., and (to the extent described in

§ 1-204.26) the Office of the Chief Financial Officer of the

District of Columbia . . . . 

D.C. Code § 2-301.04 (a) (2001) (“2005 exemption”). However, as the District 27

points out, § 2-301.04 (a)’s exemption issubject to the limitation forth in § 1-204.26. 

Although § 1-204.26 provided for the CFO to carry out procurement of goods and

services for the OCFO through an office independent of the Chief Procurement

The Congressional actionsreferenced by the Bank are: District of Columbia

26

Appropriations Act, 2006, 109 Pub. L. No. 115, § 132, 119 Stat. 2508, 2522 (2005);

Continuing Appropriation Resolution 2007, Pub. L. No. 109-289, § 127(b), 120 Stat.

1311, 1316 (2006); H.J. Res. 100, 109 Pub. L. No. 369, 120 Stat. 2642 (2006); H.J.

Res. 102, 109 Pub. L. No. 383, 120 Stat. 2678 (2006).

 This provision was repealed effective April 8, 2011. D.C. Law 18-371, 27

§ 1201(a). 
43

Officer (CPO), it made the OCFO subject to the same procurement provisions

applicable to the CPO. See D.C. Code § 1-204.26. Thus, while § 2-301.04 (a) 28

provided the OCFO with independent contracting authority, it made it subject to the

PPA’s procurement provisions to the same extent as the CPO. The Bank argues that

such an interpretation would render the exclusion in § 2-301.04 (a) meaningless,

contrary to the rule of statutory construction requiring that effect be given to each

statutory provision, absent express legislative intent to the contrary. It contends that

to give effect to both statutes, §1-204.26 must be interpreted to authorize the OCFO

to procure goods and services independent from the PPA except when its

procurement is carried out by the OCFO’s Chief Procurement Officer. 

29

 D.C. Code § 1-204.26 provides in pertinent part as follows: 28

The Chief Financial Officer shall carry out

procurement of goods and services for the Office

of the Chief Financial Officer through a

procurement office or division which shall operate

independently of, and shall not be governed by, the

Office of Contracting and Procurement . . . or any

successor office, except the provisions applicable

under such unit to procurement carried out by the

Chief Procurement Officer established by § 2-

301.05 or any successor office shall apply with

respect to the procurement carried out by the

Chief Financial Officer’s procurement office or

division. (Emphasis added.)

The Bank relies upon the September 25, 2000 and March 6, 2006 TSB

29

Authorizations because they were not carried out by OCFO’s Chief Procurement

(continued...)
44

We have no quarrel with the Bank’s recitation of the rule of statutory

construction; however, its application of the rule here is flawed. Both § 2-301.04

30

(a) and § 1-204.26, referenced therein, can be given effect without one defeating the

purpose of the other. While § 2-301.04 (a) provided for independent contracting

authority for the OCFO, § 1-204.26 simply required that in exercising that authority,

the OCFO adhere to the same statutory procurement requirements by which the

District’s CPO was bound. This interpretation, persuasively urged by the District, is

consistent with the plain meaning of the statutes. See Boyle v. Giral, 820 A.2d 561,

568 (D.C. 2003) (setting forth the principle that we look first to the plain meaning of

a statute in interpreting it, read in light of the statute as a whole) (citation omitted). 

There is nothing in the statute that suggests, as the Bank contends, that District

officials in the OCFO’s Office of Finance and Treasury, as opposed to those in the

Procurement Office, were at liberty to ignore the requirements of the PPA. In any

31

(...continued) 29

Officer.

See Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir. 1994) (quoting Morton

30

v. Mancari, 417 U.S. 535, 551 (1974) (“When two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional

intention to the contrary, to regard each as effective.”)); see also Abadie v. District

of Columbia, 843 A.2d 738, 742 (D.C. 2004) (stating that “[i]f related statutes

conflict, we must reconcile them”). (Citation omitted). 

The 2000 and 2006 TSB Authorizations were executed by District Officials

31

in the OCFO’s Office of Finance and Treasury, acting under a 2000 corporate

(continued...)
45

event, the parties’ 2005 contract, hereinafter discussed, incorporated the PPA, and

thus, as the trial court determined, “evidence[d] the intent of the OCFO to adhere to

the PPA with respect to its dealings with the [Bank].”

This court’s decision in Abadie, supra, 843 A.2d at 738, relied upon by the

District, supportsits argument that the OCFO was subject to the PPA. In Abadie, this

court concluded that, with limited, specified exceptions, the PPA applied to the OCFO

during “control years.” Id. at 745-46. The court noted in Abadie that § 2-301.04 (a), 32

which sets forth governmental entities exempt from the PPA, did not include the

OCFO, although it did list the Control Board for exemption. Id. at 743. Consistent

with the legislative history and rules of statutory interpretation, this court held in

Abadie that the OCFO’s exemption for control years applied only to the types of

(...continued) 31

resolution. The Bank contends that these particular officials were not bound by the

PPA.

The Procurement Reform Amendment Act of 1996 (effective April 1997)

32

(Reform Act) exempted the OCFO from provisions of the PPA during control years,

and required the OCFO to “adopt . . . the procurement rules and regulations adopted

by the District of Columbia Financial Responsibility and Management Assistance

Authority [Control Board].” D.C. Code § 2-301.04 (c) (2001). A control year is “any

fiscal year for which a financial plan and budget approved by the [Control Board] . . .

is in effect, and includes Fiscal Year 1996.” D.C. Code § 47-393 (4) (2005). In

Abadie, supra, this court considered and interpreted several statutory provisions

related to its decision including those related to the OCFO and the PPA. See Abadie,

843 A.2d at 741, 742-44. 
46

contracts listed in the sentence that immediately preceded it, i.e., those for professional

services of “accountants, lawyers, and other experts.” Id. at 745. 

TheBank argues that even if Abadie could be construed assubjecting the OCFO

to the PPA, its holding was rejected by subsequent Congressional enactments,

specifically, the District’s 2006 Appropriations Act, which became law on November

30, 2005 (effective retroactively from April 1997), three extensions of the 2005

exemption, and permanent codification of the exemption in D.C. Code § 2-301.04. 

The District responds that there is no evidence that Congress considered or intended

to overrule Abadie and that the 2006 Appropriations Act did not exempt the OCFO

from the dispute resolution provisions of the PPA or render ineffective the terms of

the parties’ 2005 contract incorporating the PPA that was executed before enactment

of the statute. 

The 2006 Appropriations Act provided that 

[t]he entire process used by the Chief Financial Officer to

acquire any and all kinds of goods, works, and services by

any contractual means . . . shall be exempt from all of the

provisions of the District of Columbia’s Procurement

Practices Act: Provided, That provisions made by this

subsection shall take effect as if enacted in D.C. Law 11-

259 [(the 1996 Procurement Reform Amendment Act)] and
47

shall remain in effect until September 30, 2006.

District of Columbia Appropriations Act, 2006, Pub. L. No. 109-115, § 132, 119 Stat.

2396, 2522 (2005). While the 2006 Act exempted the OCFO from the PPA with

33

respect to the acquisition of goods and services by contract, it did not address the

administration of any contract entered or the resolution of disputes arising therefrom

covered by sections of the PPA. To that extent, it left intact other provisions of the

PPA governing contract administration. Neither the plain language of these

enactments nor the legislative history cited by the Bank supports its argument that

Congress intended to overrule Abadie. When overruling court decisions, Congress

34

has been explicit in the past.35

 This exemption was extended three times through February 15, 2007. See

33

Continuing Appropriations Resolution 2007, Pub. L. No. 109-289, § 127 (b), 120

Stat. 1311, 1316 (2006) (extension through 11/17/06); H.J. Res. 100, 109 Pub. L. No.

369, 120 Stat 2642, 2642 (2006) (extension through 12/8/06); H.J. Res. 102, 109 Pub.

L. No. 383, 120 Stat. 2678, 2678 (2006) (extension through 2/15/07).

Reference is made to H.R. Conf. Rep. 109-307 (2005), 205 WL 3131557:

34

S. Rep. 109-109 (2005) (2005), reprinted in 2006 U.S.C.C.A.N. 1260.

See, e.g., Molovinsky v. Fair Emp’t Council of Greater Washington, Inc.,

35

683 A.2d 142, 148 n.11 (D.C. 1996) (Noting that “[t]he legislative history makes

clear that Congress specifically intended to overrule Luck [v. United States, 121 U.S.

App. D.C. 151, 348 F.2d 763 (1965)], rejecting the Luck rule as ‘absolutely

unworkable.’ H.R. Rep. No. 91-907, [91t Cong., 2d Sess. 62, 63 (1970)]”; Brown v.

United States, 518 A.2d 446, 447- 48 n.3 (D.C. 1986) (referencing legislative history

reflecting Congressional intent to overrule definition of a term in a particular case as

(continued...)
48

The District argues that the process used to acquire the Bank’s services had

concluded before thislaw was enacted. Although this provision was made retroactive

to 1997, the District argues that the 2006 Act did not invalidate the parties’ 2005

agreement to be bound by the PPA, as the Bank suggests. As it points out, the “laws

in effect at the time of the making of a contract form a part of the contract ‘as fully as

if they had been expressly referred to or incorporated in its terms.’” Double H. Hous.

Corp. v. Big Wash, Inc., 799 A.2d 1195, 1199 (D.C. 2002) (quoting Farmers &

Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 262 U.S. 649, 660

(1923)) (other citation omitted); accord,Akassy v. William Penn Apts. Ltd. P’ship, 891

A.2d 291, 300 (D.C. 2006). In this case, the parties specifically incorporated into the

2005 contract the PPA, the law in effect at the time.

The District contends that the PPA is even clearer in precluding OCFO

employees from agreeing to arbitrate claims involving fraud. While the PPA

authorized contracting officersto resolve contract disputes(see D.C. Code § 2-308.03

(a)(1)(2006 Repl.)), it did “not authorize the contracting officer to settle, compromise,

pay or otherwise adjust any claim involving fraud.” D.C. Code § 2-308.03 (a)(4)

(...continued) 35

reflected in H.R. Rep. No. 907, 91st Cong. 2d Sess. 62 (1970)).
49

(2006 Repl.)). The District argues that this express prohibition precluded a

36

contracting officer for the District from agreeing to arbitration of claims involving

fraud. 

A preliminary question raised by the District’s position is whether an agreement

to arbitrate a dispute falls within the parameters of these PPA prohibitions. The

answer depends to some extent upon the meaning of the term“arbitration.” This court

has observed previously that The Federal Arbitration Act “is silent on the definition

of ‘arbitration.’” See Washington Automotive v. 1828 L St. Assocs., 906 A.2d 869, 37

875 (D.C. 2006); see also Harrison v. Nissan Motor Corp. In U.S.A., 111 F.3d 343,

350 (3d Cir. 1997) (noting that the FAA does not define “arbitration,” and that “courts

and commentators have struggled to do so.”). In determining whether a certain

appraisal process constituted an arbitration under the FAA, the Tenth Circuit noted

that “[c]entral to any conception of classic arbitration isthat the disputants empowered

a third party to render a decision settling their dispute.” Salt Lake Tribune v. Mgmt.

Planning, 390 F.3d 684, 689 (2004) (citation omitted). Also essential to rendering the

D.C. Code § 308.03 wasrepealed effective April 8, 2011, D.C. Law 18-371,

36

§ 1201(a).

Similarly, this court noted that the D.C. Arbitration Act did not define the

37

term “arbitration.” Washington Automotive, supra, 906 A.2d at 875.
50

process an arbitration is that the third party’s decision will settle the dispute. Id. at

690 (citation omitted). In defining arbitration in Harrison, supra, the court stated, 

“[a]lthough it defies easy definition, the essence of arbitration . . . is that, when the

parties agree to submit their disputes to it, they have greed to arbitrate these disputes

through to completion.” 111 F.3d at 350. Dictionary definitions include these

described elements, including binding and final settlement or resolution of a dispute

by a designated third party. The PPA precludes contracting officers from settling or 38

adjusting disputes involving fraud. When the government is a party to a contract, its

representative must have actual authority in order to bind the government to it. See

Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003) (setting forth actual

authority as an element of proof required to prove an express or implied-in fact

contract with the government); accord, City of Cincinnati v. United States, 153 F.3d

1375, 1377 (Fed. Cir. 1998). It follows rationally that a government representative

cannot delegate to another actual authority that he or she does not possess. In short,

contracting officers bound by the PPA cannot agree to settle, compromise or otherwise

For example, arbitration is defined as “[a] method of dispute resolution

38

involving one or more neutral third parties who are usually agreed to by the disputing

parties and whose decision is binding.” Black’s Law Dictionary, 112 (8th ed. 2009). 

Webster’s Third New International Dictionary defines “arbitration” as “the hearing

and determination of a case between parties in controversy by a person or persons

chosen by the parties or appointed under statutory authority instead of by a judicial

tribunal provided by law.” Webster’s Third New International Dictionary, 110 (3d

ed. 1993).
51

adjust fraud claims, and they cannot delegate to others the authority to do so. Thus,

we agree with the District that the PPA withheld authority from OCFO employees to

agree to arbitrate fraud claims as well as contract claims. “A person making or

seeking to make a contract with a municipal corporation is charged or imputed with

knowledge of the scope of the agency’s authority.” Chamberlain v. Barry, 606 A.2d

156, 159 (1992) (citing Coffin, supra, 320 A.2d at 303).

2. Preemption

The Bank argues that even if the PPA did apply to the OCFO, the FAA

preempts state laws like the PPA. It contends that the FAA prohibits state law from

interfering with the objectives of the FAA, and therefore, the District’s argument that

the PPA withheld authority from District officials to agree to arbitration must fail.

Unquestionably, the FAA “establishes a national policy favoring arbitration when the

parties contract for that mode of dispute resolution.” Preston v. Ferrer, 552 U.S. 346,

349 (2008) (citing Southland Corp. v. Keating, 465 U.S. 1 (1984)) (emphasis added).

The FAA providesfor the application of federal substantive law regarding arbitration

in both federal and state courts. Id. (citing Southland, 465 U.S. at 16). Relying upon

Preston, the Bank argues that the PPA’s grant of exclusive jurisdiction of FCA claims

to Superior Court and contract claims to the Contracting Officer and the CAB is
52

superseded by the FAA. The District counters that Preston did not involve a statute

that withheld authority from a government employee to agree to arbitrate, but rather

one that bars enforcement of otherwise enforceable arbitration agreements. The

District argues that the former is permissible, while the latter is not. The District has

the better argument on this point.

In Preston, there was no dispute that the parties had a written agreement 

providing for arbitration. The Supreme Court held that “when parties agree to

arbitrate all questions arising under a contract, state laws lodging primary

jurisdiction in another forum, whether judicial or administrative, are superseded by the

FAA.” Id. at 349-50 (emphasis added). Preston, claiming fees allegedly due under

a contract with Ferrer, sought arbitration under an arbitration clause covering “any

dispute . . . relating to the terms of [the contract] or breach, validity, or legality thereof

. . . in accordance with the rules [of the American Arbitration Association].” Id. at

350. Ferrer petitioned the California Labor Commissioner to have the contract

declared void under the California Talent Agencies Act (TAA) because Preston had

39

acted as a talent agent without the requisite license. Id. Although finding a basis for

the exercise of jurisdiction, the Labor Commission’s hearing officer denied Ferrer’s

 Cal. Lab. Code Ann. § 1700 et seq. (West 2003 and Supp. 2008). 39
53

motion to stay arbitration for lack of authority to grant such relief. The Los Angeles

Superior Court denied Preston’s motion to compel arbitration, and theCalifornia Court

of Appeals affirmed, holding that the TAA vests “exclusive original jurisdiction” over

the dispute in the LaborCommissioner. TheCalifornia Supreme Court denied review,

and the Supreme Court granted certiorari to determine whether the FAA overrides

state law vesting initial adjudicatory authority in a state administrative agency. The

Supreme Court determined that the TAA conflicts with the FAA’s dispute resolution

mechanism in that (1) it granted exclusive jurisdiction to the Labor Commissioner to

decide an issue that the parties agreed to arbitrate, and (2) it imposed prerequisites to

enforcement of the arbitration agreement not applicable to contracts generally. Id. at

356. Therefore, the Supreme Court held that the FAA superseded state law (the TAA)

and that pursuant to the parties’ contract, their rights must be decided in an arbitral

forum. Id. at 352. 

There is an important difference between the circumstances presented in

Preston and those presented here. In this case, the PPA simply imposes statutory

restrictions on the authority of municipal employees to agree to arbitration. It does not

bar enforcement of valid arbitration agreements or impose conditions upon such

agreements not applicable to other contracts. See Greene,supra, 806 A.2d at 221. As

the court stated in Greene in addressing an analogous argument that applies here:
54

“what [the Bank’s] argument does is to mistake the authority of a state to bar

enforcement of otherwise valid arbitration agreements — power denied the state

except insofar as § 2 [of the FAA] permits — for the authority of a government

contracting for goods or services in its own behalf to refuse to agree to arbitrate

disputes.” Id. The FAA does not mandate arbitration; it requires enforcement of

privately negotiated arbitration agreements. Id. at 222. Here, the PPA withheld from

contracting officers the authority to bind the District to arbitration, just as any private

corporation or individual might limit an agent’s contracting authority. Therefore, we

reject the Bank’s preemption argument.

3. Controlling Contractual Agreement 

As previously discussed, the trial court ruled that the PPA, which was

incorporated into the 2005 contract, withheld from the CFO and OCFO officials the

authority to agree to arbitration and forum selection for contract and fraud claims at

the time the authorization and agreements for Treasury Services were signed.

Alternatively,the trial court found that the parties’ 2005 contract provisions governing

dispute resolution and contract modification superseded any clauses on the subject that

the Bank claims were agreed upon previously and any provision that would otherwise

allow District officials to agree to arbitration in North Carolina or elsewhere. The
55

court also concluded that after execution of the 2005 contract, the Deputy

CFO/Treasurer lacked authority to bind the District to dispute resolution clauses in the

2008 deposit agreement. The Bank argues that the trial court erred in its rulings

because: (1) it misapplied basic contract integration principles in holding

unenforceable the arbitration provisions in the TSB and the forum selection clauses

in the Deposit Agreement signed before the 2005 contract; and (2) the 2005 contract

cannot supersede documents containing such provisions signed by District officials

after the 2005 contract was entered. The Bank contends that the 2005 contract is 40

partially integrated and that the arbitration clause in the TSB and the forum selection

provisions in the Deposit Agreements operate harmoniously and must be integrated

into the 2005 contract. Alternatively, it argues thatsubsequently executed agreements

control dispute resolution. 

a. Effect of the 2005 Contract on Prior Agreements

The documents the Bank references include: (1) previously and

40

subsequently signed Authorizations incorporating the Treasury Booklet which

contained an arbitration clause; (2) Documents in the “Agreements/Documentation”

section in its responses to the 2002 and 2005 RFPs; and (3) Treasury Booklets that

it contended were sent with its responses to the 2002 and 2005 RFP. However, the

trial court found as fact that the Treasury Booklet was not included in these two

submissions.
56

“When parties to a contract have executed a completely integrated written

agreement, it supersedes all other understandings and agreements with respect to the

subject matter of the agreement between the parties, whether consistent or

inconsistent, and is viewed as the sole expression of the parties’ intent.” Masurovsky,

supra, 687 A.2d at 202 (citing Howard Univ. v. Good Food Servs., Inc., 608 A.2d 116,

126-27 (D.C. 1992)) (other citation omitted). A partially integrated agreement is one

“where the writing represents the agreement of the parties with respect to the matters

stated therein, but there may be additional consistent terms.” Id. (citing Good Food

Servs., 608 A.2d at 126)) (other citation omitted). Whether an agreement is completely

or partially integrated is a preliminary question of fact for the trial court. Id. at 126

(citing Ozerol v. Howard Univ., 545 A.2d 638, 641 (D.C. 1988)). In making its factual

inquiry, the trial court must consider the intent of the parties when they entered the

agreement as derived from “the conduct and language of the parties and the

surrounding circumstances.” Id. 

In this case, before deciding that the parties’ 2005 contract rendered ineffective

any prior authorizations or agreements for arbitration and forum selection, the trial

court held an evidentiary hearing, made factual findings, and considered the factors

essential to its determination as set forth in our case law. See, e.g., Good Food Servs.,
57

supra, 608 A.2d at 126 (citation omitted). The trial court concluded that the “parties’

written contract containing a merger clause, the conduct of the parties and the

surrounding circumstances, evaluated as a whole, weigh heavily in favor of the 2005

contract’s categorization as a fully integrated document with respect to dispute

resolution and authority to modify.” The court also stated that even if the 2005

contract could be characterized as partially integrated, it would supersede any

inconsistent terms in prior agreements. See id. However, the trial court also found

that the parties did not intend for the 2005 contract to invalidate documents signed by

OCFO and OFT officials to the extent that they allowed the account to remain open

and maintained by authorized individuals.

The trial court’s ultimate conclusion that the 2005 contract is a completely

integrated document with respect to dispute resolution and authority to modify is

supported by the record and applicable law. First, the 2005 contract contains a merger

clause that states, “This contract, including specifically incorporated documents,

constitutes the total and entire agreement between the parties. All previous

discussions, writings, and agreements are merged herein.” The presence of a merger

clause, although not conclusive, is a significant factor indicating that the parties

intended the 2005 contract to be a complete expression of the terms agreed upon. 
58

Good Food Servs., supra, 608 A.2d at 127 (II Farnsworth on Contracts § 7.3, at 204-

07 (1990)). Second, specific items or documents intended to be included in the

contract are listed. A listing of extrinsic items that form a part of the contract is a

factor tending to support the conclusion that a contract is completely integrated.

Hercules & Co. v. Shama Rest. Corp., 613 A.2d 916, 928 (D.C. 1992) (holding that

thisfactor, along with two merger clauses, established “beyond peradventure” that the

contract was completely integrated). The trial court found that the TSB containing an

arbitration clause, aside from not being enumerated as a contract document, was not

included in the Bank’s response to the 2002 RFP or its 2005 best and final offer.41

This factual determination is supported by the evidence and not clearly erroneous;

therefore, we accept it. See Psaromatis v. English Holdings I, L.L.C., 944 A.2d 472,

481 (D.C. 2008) (setting forth clearly erroneous standard for review of the trial court’s

factual findings when sitting as fact finder). 

The trial court did not credit the testimony of the Bank’s Senior Vice 41

President Biachi that he mailed the TSB with the 2002 and 2005 responses to the

RFP. See Lazo v. United States, 54 A.3d 1221, 1230 (D.C. 2012) (stating that this

court will not redetermine the trial court’s credibility determinations where it had the

opportunity to observe the witness’ demeanor). Here, the trial court also found that

Mr. Biachi, who signed the contract, did not focus on the merger clause, dispute

resolution clause, arbitration or the requirements of the PPA, nor did he even know

that there was an arbitration provision in the TSB. The trial court also found that at

no time did the parties discuss dispute resolution before the award of the 2005

contract. 
59

Third, the trial court considered the circumstances surrounding the making of

the contract before determining that it was fully integrated, specifically as to dispute

resolution and modification authority. See Good Food Servs.,supra, 608 A.2d at 126

(setting forth surrounding circumstances as one focus of the inquiry into whether the

parties intended an agreement to be completely integrated). Briefly stated, these 

circumstances included the OCFO’s “effort[s] to assert control over the District’s

finances, including its bank accounts,” in part, by issuing the 2002 RFP. The trial 42

court found that “[a]n important part of that endeavor was empowering only one

person to contractually bind the District, and except for claims under the False Claims

Act, establishing only one method of resolving disputes — through the Contracting

Officer.” To this end, the RFP provided that only the Contracting Officer is

authorized to make modifications or changes to the terms and conditions of the

contract. The RFP further required that biddersinclude a dispute resolution provision

stating that “[i]f a dispute arises under or relates to the contract, a claim by the

Contractor shall be made in writing and submitted to the Contracting Officer for a

written decision. A Claim by the District against the Contractor shall be subject to

written decision by the Contracting Officer.” Contract clauses required by the RFP

also included the incorporation by reference of the PPA and applicable regulations

The trial court found that there were 1400 bank accounts when Dr. Gandhi

42

was appointed CFO in June 2000.
60

and the laws of the District of Columbia. Except for fraud claims, the PPA provided

for only one form of dispute resolution for contract claims, i.e., that they be resolved

by the Contracting Officer. The PPA provides that contracting officers are “not

authorize[d] . . . to settle, compromise, pay, or otherwise adjust any claim involving

fraud.” D.C. Code § 2-308.03 (a)(4) (2006 Repl). It also provides that the District

may bring a civil action in Superior Court for fraud claims. D.C. Code § 2-308.14.

43

The District issued an amendment to the RFP on March 31, 2005, but the terms

and conditions related to dispute resolution, contract modification, and incorporation

ofthe PPA and other laws ofthe District ofColumbia remained unchanged. Consistent

with the RFP’s requirements, the 2005 contract executed by the parties states in

Article I that “[t]he intent of this contract is for a contractor to manage the

disbursement account in accordance with the published RFP.” The trial court found

44

that “[s]ignificantly, the Treasury Booklet was not included as part of the [Bank’s]

2002 RFP Response and the 2005 [Best and Final Offer] that were incorporated into

the 2005 Contract that Mr. Bianchi [the Bank’s Senior Vice President] signed.” This

 D.C. Code § 2-308.14 is now codified at D.C. Code § 2-381.02 (a). 43

The contract incorporated the following documents “by order of 44

precedence:” Articles I through V; Contractor’s Technical Proposal and Cost

Proposal; Contractor’s Best and Final Offer dated April 25, 2005; and the District’s

RFP.
61

factual finding, which is supported by the evidence, is not challenged. Given the

language in the written contract, the conduct of the parties, and the surrounding

circumstances as found by the trial court, we discern no error in its conclusions that

objectively the parties intended the 2005 written contract to govern their relationship

related to the CDA with respect to dispute resolution and authority to modify the

agreement and that any prior inconsistent provisions on these subjects were

superseded by the 2005 contract. “Our jurisdiction adheres to an objective law of 45

contracts, meaning that the written language embodying the terms of an agreement

will govern the rights and liabilities of the partiesregardless of the intent of the parties

at the time they entered into the contract[.]” Aziken v. District of Columbia, 70 A.3d

213, 218-19 (D.C. 2013) (internal quotation marks omitted).

The Bank argues that the trial court erred by failing to harmonize the dispute

resolution provisions of the 2005 contract and the TSB’s arbitration clause. It

contends that the TSB and Deposit Agreement operate harmoniously with the 2005

contract, and therefore must be construed together as one contract. In interpreting a

See Good Food Servs., supra, 608 A.2d at 126-27 (setting forth basis for

45

determining the preliminary factual issue of whether the parties intended a writing to

be integrated);see also Ozerol, 545 A.2d at 641 (contrasting completely and partially

integrated agreements and noting that the latter may have consistent, as opposed to

inconsistent, additional terms). 
62

contract, we consider the document as whole “so as to give effect, if possible, to all

of the provisions in the contract.” Steele Found. Inc. v. Clark Constr. Grp., 937 A.2d

148, 154 (D.C. 2007) (citing Akassy, supra, 891 A.2d at 303). Contrary to the Bank’s

argument, the dispute resolution mechanism agreed upon in the 2005 contract and the

prior arbitration and forum selection clauses upon which it relies cannot be reconciled

or harmonized. As the trial court concluded, the mechanisms for dispute resolution

46

agreed upon in the 2005 written contract are inconsistent with any prior arbitration and

forum selection provisions calling for arbitration in North Carolina that the Bank

contends were agreed upon prior thereto. The provisions in the 2005 contract,

solicited, negotiated, and agreed upon in writing, provide that: (1) except for fraud

claims, claims related to the parties’ contract will be decided by the Contracting

Officer and Contract Appeals Board; and (2) fraud claims can be pursued in a civil

Bank Julius Baer &Co. v. Waxfield Ltd., 424 F.3d 278 (2d Cir.), upon which 46

the Bank relies, is distinguishable. In that case, the district court determined that

merger and forum selection clauses in a series of subsequently executed Pledge

Agreements superseded a prior agreement to arbitrate disputes. Id. at 280. The

Pledge Agreements had a clause providing that “all rights and remedies provided in

this Agreement are cumulative and not exclusive of any provided under any other

agreement or by law or in equity.” Id. at 282. The circuit court stated that in light of

this clause, it would make little sense to read the merger clause to destroy prior

contract relationships. Id. at 283. Consistent with New York law, the court “read the

merger clause as providing that the Pledge Agreements supersede any previous

agreements only to the extent that they conflict. Id. In the case before this court, we

have no similar non-exclusive remedies provision, and the terms of the dispute

resolution provisions in the written contract and prior documents conflict. 
63

action in court by the Attorney General as stated in the PPA, which was incorporated

by reference. These provisions are entirely inconsistent with any prior agreements to

arbitrate claims in North Carolina or elsewhere. Even if the 2005 agreement is

characterized as only partially integrated, prior inconsistent terms with respect to the

mattersstated therein were superseded by the 2005 contract, and therefore, they cannot

control. See Masurovsky, supra note 11, 687 A.2d at 202 (citing Good Food, supra,

608 A.2d at 126) (other citation omitted). To the extent that provisions for dispute

resolution and forum selection are referenced on bank signature cards and

authorizations pre-dating the parties’ 2005 contract, for the foregoing reasons, we

agree with the trial court that they were superseded by the 2005 contract and cannot

be harmonized with it.

b. Effect of Subsequently Executed Documents on the 2005 Contract

Alternatively, the Bank argues that TSB and Deposit Agreements signed by

OFT officials after the 2005 contract was entered control. It contends that for

47

The Bank relies on the 2006 Authorization agreeing to be bound by the TSB, 47

signed by Deputy Chief Financial Officer, Lasana Mack, pursuant to authority

provided by the 2000 Corporate Resolution, and signature cards signed in 2006. The

TSB provides for arbitration in the United States, and the Deposit Agreements

provide for actions or proceedings involving the account to be maintained in the

(continued...)
64

partially integrated contracts, the most recent writing controls orthat the 2005 contract

could be supplemented or modified by documents executed thereafter. The Bank 

takes the position that OFT officialsretained independent contracting authority under

the 2000Corporate Resolution and that by signing signature cards and Authorizations,

OFT employees bound the District to the Deposit Agreement’s forum selection clause

and the Treasury Booklet’s arbitration clause. The Bank argues that these documents

either reinstated the terms of the TSB and Deposit Agreement or modified,

supplemented, and amended the terms of the 2005 Contract to include them. The 48

trial court held that after execution ofthe 2005 contract, which was extended each year

up to November 2009, OFT officials “plainly lacked the authority to bind the District

to the dispute resolution clauses in either the 2004 Treasury Booklet or the 2008

Deposit Agreement.” 

There are at least two major impedimentsto the Bank’s suggested result on this

issue. First, the RFP and the 2005 contract provided that the Contracting Officer was

(...continued) 47

Banking Center maintaining the account, in this case North Carolina. 

The District suggested that this court need not consider whether OFT 48

employees retained contracting authority after the 2005 contract was executed

because it did not understand the Bank’s argument to be that subsequent agreements

altered or modified the terms of the existing contract. In its Reply Brief, the Bank

clarified its position to state otherwise.
65

the “only official authorized to contractually bind the District.” Even assuming that

OFT officials retained some authority related to banking services after the execution

of the 2005 contract, the Bank, as a party to that contract, knew that only the

Contracting Officer had authority to agree on behalf of the District to modify or vary

its terms. Even absent actual knowledge of the limitations on a government agent’s

authority, as existed here, “one who contracts with a government agent is

constructively notified of the limits of that agent’s authority, and any reliance on

contrary representations cannot be reasonable.” Williams v. District of Columbia, 902

A.2d 91, 96 (D.C. 2006) (citing Leonard v. District of Columbia, 801 A.2d 82, 86

(D.C. 2002) and Greene, supra, 806 A.2d at 222 n.7 (“persons dealing with a

municipal corporation through its agent are bound to know the nature and extent of the

agent’s authority”) (quotingCoffin, supra, 320 A.2d at 303)) (other citations omitted). 

Put another way, the Bank knew that whatever authority other officials had to sign

bank documents on behalf of the District, that authority did not include modification

of the parties’ 2005 contract. Therefore, the Bank could not bind the District to a

modification of the dispute resolution provisions in the 2005 contract simply because

officials, other than the authorized Contracting Officer, signed form bank signature

cards and/or deposit agreements with printed language purporting to impose different

arbitration and forumselection requirements. The trial court found that the individuals
66

who signed these cards for the District were unaware that the fine print had arbitration

and forum selection terms. According to the testimony and trial court findings, they

signed the documents only for the purpose of adding or changing signatories on the

accounts without noting the fine print. None of them intended to effect a modification

of the 2005 contract. Of course, “[a] person who signs a contract after having had an

opportunity to read and understand it is bound by its provisions.” Interdonato v.

Interdonato, 521 A.2d 1124, 1133 (D.C. 1987) (citation omitted). However, that is

not the issue here. The determinative issue in this case is whether the person who

signed the document had authority to bind the District government to a modification

of the 2005 contract. Under the terms of that contract, only the Contracting Officer

had that authority.

Second, the 2005 contract was extended four times after its initial execution,

finally in November 2008 and expiring “on November 12, 2009 or the date any new

contract was executed, whichever came first.” This contract’s essential terms

concerning dispute resolution, incorporation of the PPA, and contract modification

remained unchanged throughout this period. Therefore, to the extent that the Bank

argues that the last executed document controls, that would be the 2005 contract that

was extended each year through November 2009. Therefore, under the Bank’s
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modification analysis, this contract would have continued to govern dispute resolution

and contract modification.

C. Challenge to the CAB’s Jurisdiction Over the Claims Asserted

Finally, the Bank argues that there is no conflict between the dispute resolution

provisions in the 2005 contract and the arbitration provision it seeks to enforce

because the District’s claims are not subject to the jurisdiction of the Contracting

Officer or CAB. It contendsthat the District’s claims are either statutory or tort claims

which the Contracting Officer and CAB have no authority to resolve. The District

views the Bank’s argument as its recognition that by incorporating the PPA into the

contract, the parties agreed that the Contracting Officer would hear contract claims,

and the Attorney General for the District could bring an FCA claim in Superior Court. 

At the same time, the District agrees with the Bank that its claims do not fall within

the provision ofthe 2005 contractrequiring that the contracting officer decide disputes

related to the contract. It contends that its statutory and tort claims against the Bank

do not turn on the contractual relationship between the parties and that they could have

been asserted against any bank that negotiated the fraudulent checks. Therefore, the

District concedes that the trial court erred in holding that the District’s claims related
68

to the contract, but takes the position that the claims should have been resolved in

Superior Court. 

Under the PPA, “[a]ll claims by the District government against a contractor

arising under or relating to a contract shall be decided by the contracting officer who

shall issue a decision in writing. . . .” D.C. Code § 2-308.03 (a)(1) (2001). The

Contract Appeals Board had jurisdiction of “[a]ny claim by the District against a

contractor, when such claim arises under or relates to a contract.” D.C. Code § 2-

309.03 (a)(3) (2001). The statute limits this jurisdiction by providing that the

contracting officer is not authorized “to settle, compromise, pay, or otherwise adjust

any claiminvolving fraud.” D.C. Code § 308.03 (a)(4) (2001). The PPA providesthat

the District may bring a civil action to recover damages or penalties against any person

who commits specified fraudulent acts. D.C. Code § 2-308.14 (a)(1)-(9).

A claimarises under a contract “(1) where the claimultimately depend[s] on the

existence of a contractual relationship between the parties; (2) resolution ofthe claim[]

relatesto interpretation of the contract; or (3) [a] contract-related tort claim involve[s]

the same operative facts as a parallel claim for breach of contract.” Cheney v. IPD

Analytics, LLC, 583 F. Supp. 2d 108, 122 (D.D.C. 2008) (alteration in original)
69

(quoting Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 694 (8th Cir.

1997)) (internal quotation marks omitted). There must be a “causal connection

between the claim and the contract based on rights, duties, or injury flowing from the

contract.” Id. at 122 (quoting Phillips v. Audio Active, Ltd., 494 F.3d 378, 389 (2d Cir.

2007)) (internal quotation marks omitted). The statute does not define “related to” the

contract or distinguish between the phrases “arising under” and “related to” the

contract. The definition of “related to” is simply “associated with” or “connected

to.” There must be some nexus between the contract and the claim asserted such that 49

reliance on the contracting officer’s expertise promotes a just resolution. 

It is not clear on this record that the District’s claims arise under the parties’

contract based on the definition extracted from Cheney, supra, 583 F. Supp. at 122. 

The District sued the Bank for violation of the Uniform Commercial Code (Counts I

and II), Negligence (Count III), Fraud (Count IV), Negligent and Intentional Breach

of Fiduciary Duties (Count V), Conversion (Count VI), False Claims Act violations

(Count VII), and Failure to Adequately Hire, Train or Supervise (Count VIII). 50

The American Heritage Dictionary of the English Language, 1097 (William

49

Morris, ed. 1969).

In Count VII of its first amended complaint, the District adopted and

50

incorporated the factual allegations set forth in the preceding eight counts(paragraphs

(continued...)
70

Resolution of none of the claims appear to concern an interpretation of the contract,

and there is no parallel breach of contract claim. To some extent, some of the claims

may depend upon the existence of a contractual relationship between the parties. See

Cheney, supra, 583 F. Supp. at 122. Others may not. Nor do all of the claims appear

on the face of the complaint to be connected to the contract itself or require the

expertise of a contracting officer for just resolution. Further inquiry by the trial court

appears to be necessary to make that determination.

 

This court has held that the CAB does not have jurisdiction over a claim for

professional negligence, recognizing the CAB’s position with respect to its own

jurisdiction. District of Columbia Water and Sewer v. Delon Hampton &Assocs., 851

A.2d 410, 417 n.16 (D.C. 2004) (citing George A. Bass Constr. Co., CAB No. D-869

(June 10, 1991)). In particular, this court noted that the CAB had stated that “‘any 51

(...continued) 50

1 - 117) of its complaint as the basis for its False Act Claims under D.C. Code § 2-

308.14 (a), subsections (2) (knowingly mak[ing], us[ing] or caus[ing] to be made or

used, a false record or statement to get a false claim paid or approved by the

District”), (3) (“conspir[ing] to defraud the District by getting a false claim allowed

or paid by the District”), (8) (failing to disclose after discovery a false claim to the

District received as an inadvertent payment or overpayment), and (9) (knowingly

failing to repay an inadvertent payment or overpayment to the District). 

In Delon Hampton, an issue under consideration was whether the trial court

51

abused its discretion in not referring claims for breach of contract and professional

negligence for administrative remedy under the doctrine of primary jurisdiction. 851

(continued...)
71

action based on negligence lies not before the Board but in Superior Court.’” Id.

(quoting Bass Constr. Co.). More recently, the CAB has explained that it may

exercise jurisdiction over claims that actually are for defective contract performance,

although asserted in the language for tort actions. In re Chief Procurement Officer

(GTE South, Inc.), 2002 DCBCA LEXIS 23, at *3-4 n.2. Although the CAB

dismissed the tort claims in GTE South because its jurisdiction is limited to contract

actions, it explained circumstances under which it had considered cases asserted as

torts, but that were actually contract claims. Specifically, the CAB stated:

Although, at times, the Board exercises jurisdiction over

claims which are framed in the language of tort actions,

those cases deal with contract performance, not torts

unrelated to performance. For example, references to

“negligence” and “professionalmalpractice” in performance

of a contract, although sounding like a tort, do not convert

into a tort what is in essence a claim for defective

performance. See, e.g., Fry &Welch Associates, P.C., CAB

No. D-0821, July 31 1997, 44 D.C. 6859, 6875.

GTE South, 2002 DCBCA LEXIS 23 at *3-4 n.2. Whether the District’s claim for

(...continued) 51

A.2d at 416-17. The trial court rejected the argument because the CAB would have

declined to provide an administrative remedy, and the doctrine of primary jurisdiction

does not apply where no administrative remedy exists. Id. at 417 & n.417 n.16. 
72

negligence (Count III) is in essence a claim for defective performance remains to be

determined after further inquiry by the trial court.

On the other hand, most of the District’s claims appear to involve fraud

perpetrated by the District’s former employees and allegedly facilitated by the Bank. 

To the extent that these claims involve fraud, they are properly pursued in court, given

the PPA’s prohibition against contracting officers paying, compromising, settling or

otherwise adjusting any claim involving fraud, see D.C. Code § 308.03 (a)(4), and

authorization for the District to sue persons committing certain fraudulent acts in

Superior Court for damages. See D.C. Code § 2-308.14 (a)(1). Interpreting a similar

federal statute, 41 U.S.C. 605(a), numerous district courts have held that the

Government can sue in district court whenever fraud is at issue even if the claim itself

is not for fraud. United States v. Menominee Tribal Enterprises, 601 F. Supp. 2d

1061, 1078 (E.D. Wis. 2009) (citing United States v. Unified Industries, 929 F. Supp.

947, 950-51 (E.D. Va. 1996); United States v. Rockwell Int’l Corp., 795 F. Supp.

1131, 1135 (N.D. Ga. 1992)). Similarly, the provision of the PPA lends itself to that

same interpretation. 

In summary, we conclude that the District’s claims in the remaining seven

counts may not be dismissed in favor of jurisdiction before the contracting officer and
73

the CAB without a determination of whether those claims can be properly pursued in

that forum or are properly before the Superior Court. That determination must be

made on the basis of the nature of the claim, rather than its title. Consistent with the

principles set forth in this section, the trial court must make that determination with

respect to each count. 

For the foregoing reasons, we affirm the trial court’s decision insofar asit holds

that the parties had no agreement to arbitrate disputes in North Carolina. We remand

the case to the trial court with instructions to determine, based on the principles

enunciated in this opinion, which counts, if any, should remain for disposition in the

Superior Court as claims involving fraud or as claims not otherwise within the

jurisdiction of the Contract Appeals Board. 

So ordered.